PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN CHARLES WELLMAN,
Defendant-Appellant.

No. 10-4689

Appeal from the United States District Court

for the Southern District of West Virginia, at Bluefield.
Thomas E. Johnston, District Judge.
(1:08-cr-00043-1)
Argued: October 28, 2011
Decided: December 7, 2011
Before KEENAN and WYNN, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Wynn and Senior Judge Hamilton joined.

COUNSEL
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. J. Christopher Krivonyak, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appel-

UNITED STATES v. WELLMAN

lee. ON BRIEF: Mary Lou Newberger, Federal Public

Defender, David R. Bungard, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, Charleston, West
Virginia, for Appellee.

OPINION
BARBARA MILANO KEENAN, Circuit Judge:
John Charles Wellman was convicted in a jury trial of three
offenses related to his possession of child pornography. He
raises three challenges in this appeal. Wellman argues that the
search warrant that led to his arrest was invalid, that a jury
instruction involving the term "obscene" was erroneous
because it lacked a knowledge requirement, and that his sentence was imposed in violation of the Eighth Amendment prohibition against cruel and unusual punishment. Upon our
review of these issues, we affirm Wellmans convictions and
sentences.
I.
On March 14, 2007, Corporal D.C. Eldridge, a member of
the West Virginia State Police assigned to the Internet Crimes
Against Children Task Force (the Task Force), received a
spreadsheet generated by the Wyoming Division of Criminal
Investigation Task Force. This spreadsheet contained a list of
entries purporting to identify instances in which child pornography had been transmitted over the Gnutella computer file
sharing network.1 The allegedly pornographic files were not
1
The Gnutella computer file sharing network allows users who have
installed certain client applications on their personal computers to download a copy of each others digital files. This "peer-to-peer" (computer to
computer) system allows individuals to transfer files over the Internet
without the use of a centralized server.

UNITED STATES v. WELLMAN

identified by name, type, or description, but by hash value.2

Each entry on the spreadsheet contained a hash value for a
digital file, the Internet Protocol (IP) address3 of the computer
offering the file for download, the locality in which that computer operated, the time and date the file was observed, and
the officer from the Task Force who identified the file, as well
as his or her law enforcement agency.
Corporal Eldridge focused on one IP address from Bluefield, West Virginia on the spreadsheet that was alleged to
have hosted five different digital files of suspected child pornography. Using the American Registry of Internet Numbers
web site, Eldridge determined that the IP address was
assigned to Comcast Corporation (Comcast) and secured an
order from a West Virginia state court to obtain the subscriber
information associated with that IP address. Comcast identified the subscriber as John Wellman, whose address was
located on Walters Avenue in Bluefield, West Virginia.
Using this information, Eldridge conducted a drivers
license inquiry and confirmed that a John Wellman was listed
at the address provided by Comcast. Wellmans name,
address, and telephone number also were corroborated by a
background report from the West Virginia Intelligence
Exchange database. That database further indicated that Wellman previously had been convicted of first degree sexual
abuse in 1987 (the abuse conviction), a felony.
2

A "hash value" is an alphanumeric string that serves to identify an individual digital file as a kind of "digital fingerprint." Although it may be
possible for two digital files to have hash values that "collide," or overlap,
it is unlikely that the values of two dissimilar images will do so. United
States v. Cartier, 543 F.3d 442, 446 (8th Cir. 2008). In the present case,
the district court found that files with the same hash value have a 99.99
percent probability of being identical.
3
An IP address is a numerical label that is assigned to each device (e.g.,
computer, printer) participating in a computer network that uses the Internet Protocol for communication.

UNITED STATES v. WELLMAN

Upon receipt of this information, Eldridge contacted the

West Virginia Criminal Identification Bureau and confirmed
Wellmans abuse conviction. Eldridge also confirmed with
the West Virginia State Police Sex Offender Registration Section that Wellman had not registered with the West Virginia
State Police as a sex offender, as required by state law.
Eldridge next obtained and reviewed an abstract of the
indictment that led to Wellmans abuse conviction. That
abstract indicated that Wellmans victim was a seven-year-old
male child, and that Wellman had used physical force to compel the child to submit to sexual intercourse.
Using all this information, Eldridge assembled a 24-page
application for a search warrant of the Walters Avenue residence. In the warrant application, Eldridge acknowledged that
neither he nor the investigators who conducted the peer-topeer searches over the Gnutella network possessed supporting
documentation regarding the content of the digital files suspected of being child pornography. As paragraph 21(c) of
attachment D of the application explained:
The information in [the spreadsheet] is believed to
be accurate, but no supporting documentation (i.e.
downloads of child pornographic files from the suspect computers) was collected by the investigating
officers during these searches of the Gnutella networks.
Therefore, the warrant application contained neither an exemplar of an allegedly offending image nor any description of
such an image. Ultimately, a state circuit court judge signed
each page of the application, concluded that there was probable cause to conduct a search of Wellmans home, and issued
the search warrant.
The West Virginia State Police executed the warrant and
conducted a search of Wellmans home. Wellman, who was

UNITED STATES v. WELLMAN

present during the search, voluntarily produced a DVD containing images of child pornography and admitted that other
such images were stored in his home on computer "hard
drives" and in other electronic formats.
Following his arrest, Wellman was indicted in the United
States District Court for the Southern District of West Virginia on three counts relevant to this appeal: (1) receiving a
visual depiction of a minor engaging in sexually explicit conduct that is obscene and had been transported in interstate
commerce, in violation of 18 U.S.C. 1466A(a); (2) receiving obscene visual representations of the sexual abuse of children while being required by federal and state law to register
as a sex offender, in violation of 18 U.S.C. 2260A; and (3)
knowingly possessing images and videos of child pornography that had been transported in interstate commerce, in violation of 18 U.S.C. 2252A(a)(5)(B).
Wellman moved to suppress the evidence obtained from the
search of his home, arguing that the warrant application was
insufficient, and that the issuing judge acted merely as a "rubber stamp." After the district court denied the motion, Wellman was tried by a jury and convicted on all three counts.
The district court sentenced Wellman to a total term of 300
months imprisonment. He received concurrent sentences of
180 months on Counts One and Three, and a sentence of 120
months on Count Two, to be served consecutively with the
other two sentences, as mandated by 18 U.S.C. 2260A.
Wellman later filed a motion challenging his sentence with
respect to Count Two, arguing that it violated the Eighth
Amendments prohibition on cruel and unusual punishment.
The district court denied his motion, and Wellman now
appeals.
II.
Wellman raises three issues on appeal. First, he contends
that the district court erred in denying his motion to suppress

UNITED STATES v. WELLMAN

evidence seized in the search of his home. Second, Wellman

asserts that the district court gave the jury an erroneous
instruction that failed to include a knowledge requirement
regarding the obscene nature of the sexually explicit material
at issue in Count One. Third, Wellman argues that the district
courts imposition of a 10-year sentence with respect to Count
Two violates the Eighth Amendment. We address these arguments in turn.
A.
Wellman asserts that the search warrant authorizing the
search of his home was defective, because the warrant application failed to include either an exemplar or a description of
an image alleged to be child pornography. He contends that
in the absence of such information, the application merely
contained the officers conclusions that the material sought
constituted child pornography. According to Wellman, this
defect in the warrant application precluded the reviewing
judge from making an independent probable cause determination.
We review de novo the district courts denial of Wellmans
motion to suppress. United States v. Rusher, 966 F.2d 868,
873 (4th Cir. 1992). However, we reach our determination
mindful of the principle that a judicial officers determination
of probable cause customarily is accorded "great deference"
by reviewing courts. Illinois v. Gates, 462 U.S. 213, 236
(1983).
In determining whether there was probable cause to believe
that Wellmans house contained images of child pornography
at the time the warrant was issued, the relevant question is
whether the known facts and circumstances were sufficient
such that a person of reasonable prudence could conclude that
the described evidence would be found in that particular
place. United States v. Perez, 393 F.3d 457, 461 (4th Cir.
2004). The probable cause standard "is not defined by bright

UNITED STATES v. WELLMAN

lines and rigid boundaries" but "allows a [judicial officer] to

review the facts and circumstances as a whole and make a
common sense determination" whether there is a fair probability that evidence of a crime will be found. United States v.
Grossman, 400 F.3d 212, 217 (4th Cir. 2005).
We decline to impose a requirement that a search warrant
application involving child pornography must include an
image of the alleged pornography. See United States v. Battershell, 457 F.3d 1048, 1052 (9th Cir. 2006) (citing New
York v. P.J. Video, Inc., 475 U.S. 868, 874 n.5 (1986)). While
the inclusion of such material certainly would aid in the probable cause determination, we do not impose a fixed requirement or a bright-line rule, because law enforcement officers
legitimately may choose to include a variety of information
when submitting a search warrant application. Instead, when
considering the merits of a judicial officers probable cause
determination, we will review a search warrant application in
its entirety to determine whether the application provided sufficient information to support the issuance of the warrant. See
Grossman, 400 F.3d at 217.
Based on the present record, however, we need not reach
the merits of the question whether the warrant application
before us sufficiently supported the judges probable cause
determination. Instead, we will assume, without deciding, that
the content of the warrant was insufficient to support a finding
of probable cause. Upon our review, we conclude that the evidence seized from Wellmans home pursuant to the search
warrant was not subject to suppression, because the record
shows that the West Virginia State Police relied in good faith
on the issued search warrant. United States v. Leon, 468 U.S.
897, 926 (1984).
In its decision in Leon, the Supreme Court instructed that
a reviewing court should not suppress evidence discovered
"under the authority of a warrant, even a subsequently invalidated warrant, unless a reasonably well trained officer would

UNITED STATES v. WELLMAN

have known that the search was illegal despite the [judicial
officers] authorization." United States v. Bynum, 293 F.3d
192, 195 (4th Cir. 2002) (citing Leon, 468 U.S. at 922 n.23)
(quotation marks omitted). This "good faith" exception will
be applied except in four limited situations: (1) when the affiant based his application on knowing or reckless falsity; (2)
when the judicial officer wholly abandoned his role as a neutral and detached decision maker and served merely as a "rubber stamp" for the police; (3) when the affidavit supporting
the warrant was so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable;
and (4) when the warrant was so facially deficient that the
executing officers could not reasonably have presumed that
the warrant was valid. United States v. Doyle, 650 F.3d 460,
467 (4th Cir. 2011) (quoting United States v. DeQuasie, 373
F.3d 509, 519-20 (4th Cir. 2004)).
According to Wellman, the state circuit court judge reviewing the warrant application acted as a "rubber stamp" by issuing a search warrant without sufficient information and,
therefore, the Leon good faith exception is inapplicable. We
find no merit in this argument.
The record before us shows that when the judge approved
the search warrant, he did not act as a "rubber stamp" or abandon his role as a neutral and detached decision maker. Moreover, as we explained in Doyle, an allegation that a search
warrant application contained grossly insufficient information
is best analyzed under the third Leon exclusion. Doyle, 650
F.3d at 470 (distinguishing United States v. Wilhelm, 80 F.3d
116, 121-23 (4th Cir. 1996)). We therefore review the evidence under the third Leon exclusion to determine whether
the warrant application was so lacking in indicia of probable
cause as to render official belief in its existence entirely
unreasonable. See Doyle, 650 F.3d at 467.
In conducting this review, we observe that Corporal
Eldridges affidavit bears many of the indicia of a strong

UNITED STATES v. WELLMAN

search warrant application. Eldridge provided information in

the application regarding his background as an investigator,
which established his experience in dealing with crimes
involving child pornography. He set forth a thorough explanation of the technology employed by the Task Force and how
that technology was used to identify Wellman. Rather than
relying exclusively on the information provided by the
spreadsheet and Comcast, Eldridge performed additional
research into Wellmans background to provide corroboration
and to minimize the possibility of mistake or confusion. Further, the dates provided in the search warrant application demonstrate that the affidavit was not a hastily-assembled
document based on a single tip, but was the product of a sixweek investigation. Upon examining the totality of this information before the issuing judge, we conclude that the affidavit
supporting the warrant was not so lacking in indicia of probable cause as to render official belief in its existence entirely
unreasonable. Therefore, upon application of the Leon analysis, we hold that the district court did not err in denying Wellmans motion to suppress.
B.
Wellman next argues that the district courts instruction
regarding Count One was erroneous because the instruction
did not contain a knowledge requirement. He asserts that the
jury should have been instructed that the government was
required to prove beyond a reasonable doubt that Wellman
knew that the images of the minors engaged in sexually
explicit conduct were obscene. We disagree with this argument.
The fatal flaw in Wellmans argument is his attempt to
graft a subjective, fact-based knowledge requirement onto an
objective legal standard. The statute under which Wellman
was convicted provides, in relevant part:
Any person who . . . knowingly produces, distributes, receives, or possesses with intent to distribute,

10

UNITED STATES v. WELLMAN

a visual depiction of any kind, including a drawing,

cartoon, sculpture, or painting, that
(A) depicts a minor engaging in sexually
explicit conduct; and
(B) is obscene . . .
shall be subject to the penalties provided in section
2252A(b)(1), including the penalties provided for
cases involving a prior conviction.
18 U.S.C. 1466A(a).
The term "obscene," as used in statutes of this type, refers
to an objective, legal standard, not to an issue of fact. The
Supreme Court explained this distinction in Hamling v.
United States, 418 U.S. 87 (1974), a case involving a prosecution under 18 U.S.C. 1461 for the mailing of, and conspiring
to mail, an obscene brochure containing sexually explicit photographs. The Court explicitly rejected the defendants argument that the government was required to prove that the
defendants knew that the mailed materials were obscene. The
Court emphasized that:
It is constitutionally sufficient that the prosecution
show that a defendant had knowledge of the contents
of the materials he distributed, and that he knew the
character and nature of the materials. To require
proof of a defendants knowledge of the legal status
of the materials would permit the defendant to avoid
prosecution by simply claiming that he had not
brushed up on the law. Such a formulation of the
scienter requirement is required neither by the language of [the statute] nor by the Constitution.
418 U.S. at 123-24.

UNITED STATES v. WELLMAN

11

Contrary to Wellmans suggestion, the Hamling analysis is

not affected by the Supreme Courts later decision in United
States v. X-Citement Video, Inc., 513 U.S. 64 (1994). There,
the Supreme Court considered a prosecution brought under 18
U.S.C. 2252(a), which alleged the transportation or shipment of materials containing depictions of minors engaging in
sexually explicit conduct. That statute provided, in relevant
part:
Any person who
(1) knowingly transports or ships in interstate or foreign commerce by any means
including by computer or mails, any visual
depiction, if
(A)

the producing of such visual depiction involves the use of a minor

engaging in sexually explicit conduct;
and

(B)

such visual depiction is of such conduct;

(2) knowingly receives, or distributes, any visual

depiction that has been mailed, or has been shipped
or transported in interstate or foreign commerce, or
which contains materials which have been mailed or
so shipped or transported, by any means including
by computer, or knowingly reproduces any visual
depiction for distribution in interstate or foreign
commerce or through the mails, if
(A)

the producing of such visual depiction involves the use of a minor

engaging in sexually explicit conduct;
and

12

UNITED STATES v. WELLMAN

(B)

such visual depiction is of such conduct;

...
shall be punished as provided in subsection (b) of
this section.
18 U.S.C. 2252(a) (1988 & Supp. V).
The Supreme Court concluded that, among other things, the
term "knowingly" imposed a scienter requirement with regard
to factual issues involving the age of the persons depicted and
whether the material at issue was sexually explicit. 513 U.S.
at 78. Thus, the Court held that under the statute, the government was required to prove that the defendants knew that persons appearing in the materials at issue were "minor[s]," and
that the conduct depicted was "sexually explicit." See id.
Notably, however, the Court in X-Citement Video did not
apply a knowledge requirement to any legal standard. This
distinction is critical, as the Courts analysis in Hamling illustrates. Under that analysis, a defendants knowledge of the
law is not a relevant consideration in a prosecution involving
the distribution of allegedly obscene materials. 418 U.S. 12324. Thus, we conclude that the district court did not give the
jury an erroneous instruction on this issue, because the jury
was not required to find that Wellman knew that the images
at issue were obscene.
C.
Finally, we consider Wellmans argument addressing the
length of his sentence. He asserts that the length and consecutive nature of his ten-year sentence with respect to Count Two
constitute a de facto life sentence given his age of 68 years.
He contends that, therefore, his sentence on Count Two is
unconstitutionally disproportionate. We disagree with Wellmans argument.

UNITED STATES v. WELLMAN

13

The Eighth Amendment to the Constitution of the United

States bans, among other things, "cruel and unusual punishments." U.S. Const. amend. VIII. In applying the Eighth
Amendment to such a claim, an appellate court decides only
whether the sentence under review is within constitutional
limits. Solem v. Helm, 463 U.S. 277, 290 n.16 (1983).
In Solem, the Supreme Court instructed that reviewing
courts should "grant substantial deference to the broad authority that legislatures necessarily possess in determining the
types and limits of punishments for crimes . . . ." Id. at 290.
Thus, appellate courts only "rarely will be required to engage
in extended analysis to determine that a sentence is not constitutionally disproportionate." Id. at 290 n.16; see also Hutto v.
Davis, 454 U.S. 370, 374 (1982) (stating that "successful
challenges to the proportionality of particular sentences
should be exceedingly rare") (quotation marks omitted). As
one of our sister circuits colorfully stated, the instances of disproportionate sentences resulting in an Eighth Amendment
violation will be "hens-teeth rare." United States v. Polk, 546
F.3d 74, 76 (1st Cir. 2008).
We are not confronted here with a disproportionate sentence of constitutional magnitude. And, as we observed in
United States v. Rhodes, 779 F.2d 1019, 1028 (4th Cir. 1985),
extensive proportionality analyses are only required in those
cases involving life sentences without the possibility of
parole. In contrast, other lesser sentences that are clearly
within the prerogative of Congress and subject to imposition
by a district court may be disposed of swiftly. Id.
In Solem, the Supreme Court employed a three-part test
using objective factors to gauge the proportionality of sentences for purposes of Eighth Amendment compliance: (1) the
gravity of the offense and the harshness of the penalty; (2) the
sentences imposed on other criminals in the same jurisdiction;
and (3) the sentences imposed for commission of the same
crime in other jurisdictions. 463 U.S. at 292. Because the

14

UNITED STATES v. WELLMAN

crime in this case, like the crime reviewed in Rhodes, involves

the violation of a federal statute, the last two elements collapse into a single element. See Rhodes, 779 F.2d at 1029.
The harshness of Wellmans penalty reflects the gravity of
his crimes. Wellman received and possessed images depicting
the sexual abuse of some of the most vulnerable members of
our society. Children, as the subject of these images, undeniably suffer serious harm when they are used to create this type
of material. Additionally, Wellmans failure to obey the statutory requirement that he register as a sex offender demonstrated an attempt to evade the law and the protections
Congress established for the communities in which such
offenders reside.
Ultimately, however, as the district court correctly noted,
the severity of Wellmans sentence was based on his recidivism. See Ewing v. California, 538 U.S. 11, 25 (2003)
("Recidivism has long been recognized as a legitimate basis
for increased punishment.") In 1987, Wellman was convicted
of sexual abuse in the first degree for his use of force in
coercing a seven-year-old child to engage in sexual intercourse with him. In recidivist situations like the one before us,
Congress is well within its authority to provide for enhanced
sentences.
The ten-year sentence for Count Two also is proportional
to other sentences for violations of 18 U.S.C. 2260A,
because this sentence is mandated by statute. Thus, we conclude that Wellmans consecutive sentence for his conviction
on Count Two does not violate the Eighth Amendment.
III.
For these reasons, we affirm the district courts judgment.
AFFIRMED